Citation Nr: 1017013
Decision Date: 05/07/10 Archive Date: 05/19/10
DOCKET NO. 06-06 328 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether the character of the appellant's discharge is a bar
to benefits administered by the Department of Veterans
Affairs.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and mother
ATTORNEY FOR THE BOARD
Clifford R. Olson, Counsel
INTRODUCTION
The appellant served on active duty from February 1996 to
October 1996.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
In October 2005, a hearing on appeal was held before a
Decision Review Officer at the RO. The transcript of the
hearing is in the claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The appellant contends that schizophrenia had its onset
during his period of active service with the United States
Navy in 1996, and this precipitated the misconduct that led
to his discharge from service. All we have is a one page
memorandum from the United States Navy in support of the
discharge. The appellant had prior reserve service with the
United States Army and those records were obtained. The file
contains an envelop marked "Navy," but the records are
actually for the Army examinations. In September 2003, the
RO requested the appellant's service treatment records and
was told that there were no records at that station and
further searches were recommended. There is no evidence of
any follow-up or further attempts to obtain the appellant's
records. The Veterans Claims Assistance Act provides that VA
must continue it efforts to obtain Federal records until such
records are obtained, unless it is reasonably certain that
such records do not exist or that further efforts to obtain
them would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002).
Thus, further efforts, and particularly the development
recommended in 2003, must be pursued.
Also, the appellant's service personnel records have not been
obtained. These are relevant and such be obtained and
considered by adjudicators.
Accordingly, the case is REMANDED for the following action:
1. The agency of original jurisdiction
(AOJ) should make further attempts to
obtain the service treatment records
for the appellant's period of Navy
service in 1996. The development
recommended in the response on the VA
Form 3101, dated in September 2003,
should be pursued. If the service
treatment records cannot be obtained,
the AOJ should notify the Veteran and
his representative, describing all
efforts to obtain the records.
2. The AOJ should obtain a complete
copy of the appellant's service
personnel records for the period of
Navy service in 1996. If the service
personnel records cannot be obtained,
the AOJ should notify the appellant and
his representative, describing all
efforts to obtain the records.
3. Thereafter, the AOJ should
readjudicate this claim in light of any
evidence added to the record. If any
benefit sought on appeal remains denied,
the appellant and his representative
should be provided a supplemental
statement of the case (SSOC). An
appropriate period of time should be
allowed for response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).